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FIRST
SECTION
CASE OF BRAGA, TIMOFEYEV AND KIRYUSHKINA v. RUSSIA
(Application
no. 24229/03)
JUDGMENT
STRASBOURG
6
March 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Braga, Timofeyev and Kiryushkina v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoli Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 12 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24229/03) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by three Russian nationals, Mrs Anna Nikolayevna
Braga, Mrs Nina Ivanovna Kiryushkina and Mr Vyacheslav Aleksandrovch
Timofeyev (“the applicants”), on 16 July 2003.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant complained about a lengthy non-enforcement of the judgment
in their favour.
- On
21 February 2007 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the applications at
the same time as their admissibility.
THE FACTS
- The
applicants live in Kemerovo. Mrs Braga died on 17 May 2007.
- On
23 December 1999 the Tsentralniy District Court of Kemerovo granted
the applicants' claim against the Kemerovo Town Council and held that
the Council should provide Mrs Braga with a two-room flat, Mrs
Kiryushkina with a two-room flat and Mr Timofeyev with a one-room
flat.
- On
16 March 2000 the Kemerovo Regional Court upheld the judgment on
appeal.
- By
letter of 5 April 2000, the Kemerovo Town Council informed the
bailiffs that the applicants had been placed on the waiting list. By
letter of 5 May 2000, the Council told Mrs Kiryushkina that
there existed a waiting list for enforcement of judicial decisions
requiring provision of flats and that the applicants had been
assigned numbers 61 to 63 on the waiting list.
- The
applicants applied to the District Court, seeking to have the
operative part of the judgment amended so as to receive the market
value of the flats.
- On
23 May 2001 the Tsentralniy District Court refused their application
because the enforcement proceedings were still pending and because
they had in the meantime advanced by thirty positions on the waiting
list. On 19 July 2001 the Kemerovo Regional Court upheld that
decision on appeal.
- By
letter of 9 November 2001, the Kemerovo Regional Prosecutor's Office
informed the applicants that the enforcement proceedings had not been
carried out in accordance with the Enforcement Act and that the
bailiffs had been directed to remedy the violations.
- On
2 June 2005 the applicant Mr Timofeyev received a one-room flat in
Kemerovo under a social-tenancy agreement. On 23 June 2006 he
privatised the flat and registered his title to it.
- On
10 March 2005 the Town Council offered the applicants Mrs Braga
and Mrs Kiryushkina two vacant two-room flats in Kemerovo. They did
not accept the offer, indicating their wish to receive new flats. On
30 September 2005 two one-room flats in a new block of flats
were offered to them but they refused the offer because the flats had
only one room each. On 22 May 2007 Mrs Kiryushkina agreed to move
into a two-room flat. Following the death of Mrs Braga, on 29 May
2007 her son agreed to a one-room flat.
THE LAW
I. THE GOVERNMENT'S REQUEST TO STRIKE OUT MRS BRAGA'S
COMPLAINT UNDER ARTICLE 37 OF THE CONVENTION
- The
Government asked the Court to discontinue proceedings on Mrs Braga's
complaint. They indicated that Mrs Braga had died and that no heirs
had manifested an intention to pursue the proceedings in her stead.
- The
Court recalls Article 37 of the Convention which provides in the
relevant part as follows:
“1. The Court may at any stage of the
proceedings decide to strike an application out of its list of cases
where the circumstances lead to the conclusion that
...
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
- The
Court notes that Mrs Braga died on 17 May 2007 and that no request
has been submitted by her heirs to pursue the examination of her
complaint. In these circumstances, the Court finds that it is no
longer justified to continue the examination of Mrs Braga's complaint
within the meaning of Article 37 § 1 (c) of the Convention.
Furthermore, it finds no special circumstances regarding respect for
human rights as defined in the Convention and its Protocols which
would require the continued examination of her complaint.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention
about the continued failure to enforce the judgment of 23 December
1999, as upheld on 16 March 2000. Article 6, in the relevant part,
provides as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time ... by [a] ... tribunal...”
A. Admissibility
- The Government submitted that the applicants did not
exhaust the domestic remedies because they had not applied to
domestic courts with a complaint about the continued non-enforcement
of the judgment.
- The Court reiterates that
Article 35 § 1 of the Convention, which sets out the rule on
exhaustion of domestic remedies, provides for a distribution of the
burden of proof. It is incumbent on the Government claiming
non exhaustion to satisfy the Court that the remedy was an
effective one, available in theory and in practice at the relevant
time, that is to say, that it was accessible, was one which was
capable of providing redress in respect of the applicant's complaints
and offered reasonable prospects of success (see Selmouni
v. France [GC], no. 25803/94, §
76, ECHR 1999-V, and Mifsud v. France
(dec.), no. 57220/00, § 15, ECHR 2002 VIII).
- The Court notes that the
Government omitted to comment on the efficiency of the remedy they
suggested. They did not explain how the lodging of a complaint before
a domestic court could have put an end to the continued
non-enforcement of the judgment or what kind of redress the
applicants could have been provided with as a result of the action.
Even assuming that the applicants could have brought a complaint and
obtained a decision confirming that the non-enforcement had been
unlawful in domestic terms, the outcome of such a claim would only
have produced repetitive results, namely a writ of execution enabling
the bailiffs to proceed with the enforcement of the original judgment
(compare, among many others, Yavorivskaya v. Russia (dec.),
no. 34687/02, 13 May 2004). The Court dismisses the Government's
objection as to the non-exhaustion of domestic remedies.
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government acknowledged that there was a violation of Article 6
of the Convention on account of lengthy non-enforcement of the
judgment in favour of Mr Timofeyev. As regards the situation of
Mrs Kiryushkina, they accepted their liability only for the
period of non-enforcement lasting until 10 March 2005, the date on
which Mrs Kiryushkina had refused the first offer of a two-room
flat.
- The
applicants submitted that the initial offer had been made in respect
of flats located outside the city confines of Kemerovo and that no
formal offer had been made on 30 September 2005, contrary to the
Government's allegations.
- The
Court observes that on 23 December 1999 the applicants Mr Timofeyev
and Mrs Kiryushkina obtained a judgment in their favour against the
town council. By terms of the judgment, the council was to provide
them with flats. Acceptable flats were made available to Mr Timofeyev
only on 2 June 2005, that is five years and five months later, and to
Mrs Kiryushkina on 22 May 2007, that is seven years and four months
later. The Court rejects the Government's argument that they may only
be held liable for the period of non-enforcement up to the date when
the first offer of a flat was made to Mrs Kiryushkina. If the
domestic authorities considered her refusal whimsical or
unreasonable, it was open to them to apply for discontinuation of the
enforcement proceedings on that ground. No such application having
been made, the proceedings had continued until the judgment was
enforced in full.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the ones in the present
case (see Reynbakh v. Russia, no. 23405/03, § 23
et seq., 29 September 2005; Gizzatova v. Russia, no. 5124/03,
§ 19 et seq., 13 January 2005; Petrushko v. Russia,
no. 36494/02, § 23 et seq., 24 February 2005; Gorokhov
and Rusyayev v. Russia, no. 38305/02, § 30 et
seq., 17 March 2005; Wasserman v. Russia, no. 15021/02, §
35 et seq., 18 November 2004; Burdov v. Russia,
no. 59498/00, § 34 et seq., ECHR 2002 III).
-
Having examined the material submitted to it, the Court notes that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court finds that by
failing to comply with the enforceable judgment in the applicants'
favour the domestic authorities violated their right to a court.
- There
has accordingly been a violation of Article 6 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 15,000 euros (EUR) each in respect of
non-pecuniary damage.
- The
Government submitted that the amount claimed was excessive and
unreasonable because the applicants had not produced evidence of
mental anguish.
- The
Court reiterates that non-pecuniary damage is an applicant's
subjective measure of the distress he or she had endured because of a
violation of his or her rights and, by its nature, is not amenable to
proof (see Korchagin v. Russia, no. 19798/04, § 25,
1 June 2006). The Court accepts that the applicants Mr Timofeyev and
Mrs Kiryushkina suffered distress and frustration because of the
State authorities' failure to enforce the judgment in their favour
within a reasonable time. Making its assessment on an equitable basis
and taking into account the length of the enforcement stage, the
Court awards the applicant Mr Timofeyev EUR 3,900 and the
applicant Mrs Kiryushkina EUR 4,700 in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicants did not claim any costs and expenses. Accordingly, there
is no call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to discontinue the examination of Mrs
Braga's complaint;
- Declares the complaints by the applicant Mr
Timofeyev and Mrs Kiryushkina admissible;
- Holds that there has been a violation of Article
6 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 3,900 (three thousand nine hundred euros) to
the applicant Mr Timofeyev and EUR 4,700 (four thousand seven hundred
euros) to the applicant Mrs Kiryushkina, plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 March 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
